This past week, the United States Court of Appeals for the District of Columbia ruled in favor of upholding Remote Identification (Remote ID) for drones. Tyler Brennan, who owns drone retailer RaceDayQuads, filed a lawsuit against the Federal Aviation Administration (FAA) with the underlying claim that the final Remote ID ruling violated the U.S. Constitution’s Fourth Amendment by allowing ‘constant, warrantless governmental surveillance.’
Judge Cornelia Pillard struck down the petition and had this to say about Remote ID:
‘Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security. Congress recognizes as much.’
Remote ID, the concept that drones should have a digital license plate, has been a polarizing topic for years. While it will push the industry forward, by enabling remote pilots to safely perform complex flights including over people, at night, and beyond-visual-line-of-sight (BVLOS), many pilots, and drone manufacturers, are also concerned with privacy.
Besides a violation of privacy, including continuous surveillance of remote pilots that could lead to the location of someone’s home, Brennan also claimed the FAA made procedural mistakes, and failed to adequately respond the 53,000+ public comments posted on the Notice of Proposed Rulemaking (NPRM) for Remote ID.
There were many in the industry that thought that the lawsuit was grasping at straws.
Judge Pillard struck down the latter claim stating the ‘FAA doesn’t have to respond to purely speculative comments, and its duty under the Administrative Procedure Act was fully met when it looked at about 53,000 public comments and gave a detailed explanation of the policy choices in the Final Rule (APA).’
From an outsider’s perspective, this verdict seems abysmal for hobbyists and remote pilots alike. However, to be certain, I reached out to Kenji Sugahara, lawyer, member of the FAA’s Drone Advisory Committee and head of the Drone Service Provider’s Alliance. ‘I thought the court’s opinion was well reasoned and well researched. The court went argument by argument and addressed each one, and I think that’s why the opinion took so long to come out. There were many in the industry that thought that the lawsuit was grasping at straws.’
‘There were definitely some positives that came out of the ruling – the court said that the US Government “has exclusive sovereignty of airspace of the United States,” which cuts into the argument that low altitude airspace is under the control of local jurisdictions. Local control of airspace would have been a nightmare for all drone operators and would have likely ended our industry and hobby,’ Sugahara continues.
This sentiment was echoed by Ryan LaTourette, who serves as Director of Regulatory Affairs for Great Lakes Drone Company. ‘Brennan had argued that the FAA’s sole jurisdiction of airspace and imposing of Remote ID should not extend to the lower airspace as drones could be flying below treetops and not out in open spaces. Had the court accepted this and disallowed the FAA from jurisdiction over that lower airspace, we’d have seen the floodgates opened wide for all kinds of local government ordinances and state laws making their own drone restrictions.’
While an appeal is possible, both experts agree its a non-winner. ‘You have to realize that there are a number of rules as well as companies that are dependent on Remote ID. BVLOS and portions of ops over people are in limbo until RID is implemented – and many startups that are dependent on those rules are rapidly running out of funding. In essence, delays will cause people to lose their jobs,’ Sugahara states.
RID could potentially expose pilots to harassment, but that’s where I’d like to leverage my patent – and that’s to use it to ensure that only law enforcement/public safety that gets ground station location or take-off location.
‘Overall, there are major portions of Remote ID that are still incredibly bothersome. I do envision that compliance will be highly problematic especially when it provides the general public pinpoint location of the drone operator. Confrontations will take place and the chance for violence, theft, and destruction of property are increased by not having struck down portions of Remote ID,’ LaTourette claims.
Sughara echoes this concern as well. ‘RID could potentially expose pilots to harassment, but that’s where I’d like to leverage my patent – and that’s to use it to ensure that only law enforcement/public safety that gets ground station location or take-off location. If DOJ (Department of Justice) and FAA won’t take action against those who threaten pilots, it’s up to the industry to ensure that it’s harder to get the information that could put pilots in danger.’
All remote pilots will be required to comply with Remote ID regulations, including flying an outfitted aircraft or in an FAA-Recognized Identification Area (FRIA), by September 16, 2023. What do you think of the FAA’s Remote ID ruling?